Judicial
Appointments is yet another factor to test the independence of the Judiciary.
The best guarantee for Judicial Independence is the impeccable conduct of the
Judge. There are three methods.,
1)
Election by Legislature
2) Election by the People
3) Appointment by the
Executive.
If a Judge is elected by the legislature, he will tend to be
faithful to the political party in the legislature which elects him. In the
second method, the Judges will interpret the laws in such way as to win for a
second term of office. He might be tempted to indulge in / populist politics.
As regards the third method, we know that Mrs.Indira Gandhi appointed
Mr.A.N.Roy as a Chief Justice of India superseding three senior-most Judges. Fortunately,
the same was not followed in appointing the Chief Justice afterwards. When
compared to other methods, this is the best of the worst.
The attention is to be drawn on the
attempts mode by the Executive to in texture with the Independence of jurisprudence.
By introducing the 93rd Constitutional Amendment Bill, 2003. It
provides for constitution of a National Judicial Commission for appointment of
Judges of the Supreme Court and High Court and other incidental matters. But,
under the provisions of the constitution under Act 124 (1), the President
shells appoint the Chief Justice of India and 26 other Judges of the Supreme
Court. However, every Judge of the Supreme Court and High Court shall be
appointed by the President in-consultation with the Chief Justice of India.
The
term “in-consultation” with the Chief Justice of India is yet a subject matter
of further explanation. It is a question whether the opinion of the Chief
Justice of India is binding on the President regarding the appointment of other
Judges of the Supreme Court and High Court.
The President can also consult
others including experts, the Executive or even other Judges of the Supreme
Court. For furnishing information to the President, the Chief Justice of India
consults with at least senior most Judges of Supreme Court which forms
collegiums Article 216 of the constitution provides similar procedure for
appointment of Chief Justice of High Court and other Judges.
At this stage
under Article 217(1), the President of India consults Chief Justice of India,
Governor of the state, and the Chief Justice of the High Court for appointment
of a High Court Judge. But according to the language used in constitution under
Article 124(1), 217(1), the President is required to consult legal experts only.
Prior to the Judgement in Supreme Court advocates on ‘Record Association vs Union of India[1]’.
It was interpreted in thief case, that the President was not bound to Act in
accordance with the opinion of Chief Justice of India. The meaning of the term
“Consultation” came up for consideration before the Supreme Court in Union of India Vs Sankal Chand Seth[2].
It was held that the word ‘consultation’ means full and effective consultation.
For this purpose it is necessary that the three constitutional functionaries
must have, for its consideration, full and identical facts on the basis of
which they would be able to take a decision. The President has a right to defer
from them and take a contrary view. Consultation does not mean concurrence and
the President was not bound by it.
[1] AIR 1994 SC 268
[2] AIR 1977 SC 2328
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